(1) These Terms of Use apply to the services provided by Günther Spelsberg GmbH + Co. KG, Im Gewerbepark 1, D-58579 Schalksmühle („Spelsberg“) in connection with the use of the „Spelsberg Configurator“ by entrepreneurs, i.e. they shall apply to natural or juridical persons or partnerships recognised as independent legal entities that act in the exercise of a commercial or self-employed professional activity. Spelsberg operates the B2B- online-web application „Spelsberg Configurator“ on configurator.spelsberg.com, an online configurator that is exclusively addressed to buyers having completed their 18th year and to entities in the sense of paragraph 14, subparagraph 1 BGB (German Commercial Code).
(2) These Terms of Use exclusively regulate the use of the „Spelsberg Configurator“ on configurator.spelsberg.com by the customers („Customer“) of Spelsberg. The „Spelsberg Configurator“ is a web application that supports the customer with the configuration of the selected products.
(3) These Terms of Use shall apply exclusively. The customer's General Terms and Conditions of Business shall apply only if and when Spelsberg has expressly agreed to them in writing.
Spelsberg can adapt these Terms of Use due to changes of the legislation, the administration of justice, the market conditions or if products and services are introduced or changed. Changes shall be recognised to be valid for the reuse of the performances affected by the changes, if the customer did not opt out from the changed conditions in writing within a period of four weeks after the announcement. Spelsberg shall separately point out this legal consequence to the customer at each announcement of a change.
(1) The customer can use the „Spelsberg Configurator“ without registration. In this case, the contract with Spelsberg comes into existence by utilising the performances provided by the „Spelsberg Configurator“ or by its use. In this
(2) The contract about the use of the „Spelsberg Configurator“ also comes into existence after the customer logs in or registers via the registration form „My Spelsberg System“. Registration is only possible when the customer actively agrees with the validity of these Terms of Use. With this, the Terms of Use become part of the contract.
(3) The customer shall not be eligible for a certain scope of performance, a certain design, equipment or functionality of the „Spelsberg Configurator“. The prices for the configuration compiled in the shopping cart are not binding and are the retail prices suggested by Spelsberg while they are subject to legal added value tax.
(4) After the customer has created a configuration using the „Spelsberg Configurator“, he/she can send this configuration to Spelsberg for the creation of an individual quotation („Inquiry to Spelsberg“). The quotations created by Spelsberg are based on the customer's entries in the „Spelsberg Configurator“ applying the General Terms and Conditions issued by Spelsberg as amended from time to time. Spelsberg does not check the configurations for logical consistency, plausibility, correctness and/or completeness. Such a test is also not due to Spelsberg.
(5) Alternatively, the customer can purchase the configuration, created with the „Spelsberg Configurator“ via the wholesale trade („Order at wholesale“). In this case, the configuration is sent to the respective wholesaler.
(1) With the conclusion of this contract, Spelsberg grants the customer a not exclusive, not transferable, and limited right for the use of the „Spelsberg Configurator“ as an executable program available in the browser in the extent described in these Terms of Use. This includes the right limited to the extent described before, to use the platform of the „Spelsberg Configurator“ via the Internet in the extent granted in the contract for the commercial purposes of the customer allowed in accordance with this contract.
(2) The customer does not receive any further reaching rights; in particular the customer shall not be entitled to reproduce, to distribute, to make it publicly available, to change or to edit it. Granting of sub-licences is not allowed; the customer is not entitled to release the source code.
(1) The contents that can be called through the „Spelsberg Configurator", especially texts, product descriptions, images, drawings, diagrams, figures and suchlike are protected by copyright. Subject to the legal provisions of the copyright, each and any use or utilisation, in particular reproduction, distribution, making it publicly available or editing, need the authorisation by Spelsberg.
(2) Spelsberg entitles its customers the non-exclusive, territorially and timely unrestricted right to use the contents callable via the „Document generation“ function, especially the order lists, tender texts and diagrams for the creation of inquiries, invitations to tender, and quotations .
(1) Spelsberg is entitled to take appropriate technical measures for the protection from utilisation that does not meet the contracted use of the „Spelsberg Configurator“.
(2) Spelsberg can change the „Spelsberg Configurator“ (including its system requirements) to adapt it to technical or economical market changes and for important reasons. In particular there is an important reason when the change is required due to a necessary adaptation to a new legal situation or administration of justice, changed technical general conditions (new browser versions or technical standards), the
protection of system safety or the further development of web applications (for clarification: within the scope of these Terms of Use Spelsberg shall not be liable for the further development of the web application).
The use of the „Spelsberg Configurator“ is free.
(1) Spelsberg shall be liable for damages that resulted to the customer in connection with this contract, as far as Spelsberg, its representatives or vicarious agents are charged with intent and gross negligence.
(2) Furthermore, Spelsberg shall be liable for damages that resulted to the customer in connection with this contract, as far as these have been caused by Spelsberg, its representatives or vicarious agents due to the negligent violation of an essential contractual obligation. Essential contractual obligations are such whose fulfilment is necessary for reaching the targets of the contract. In this case, Spelsberg's liability is restricted to damages that typically were not foreseeable at the time of the conclusion of the contract.
(3) This restriction of liability applies to all punitive damages, regardless of the legal basis, including pre-contractual or secondary contractual demands. However, this limitation of liability does not restrict a mandatory liability, including the liability as per German Product Liability Act or the liability for personal injury that has been caused by negligence.
(4) The customer is liable to take effective measures for avoiding and reducing damages.
(5) The no-fault liability of Spelsberg for mistakes that already existed before the conclusion of the contract as per paragraph 536 subparagraph 1 BGB (German Commercial Code) is explicitly excluded.
(6) The customer itself is responsible for the regularly saving the projects created in the „Spelsberg Configurator“ and for this purpose, it can save them locally in its hardware.
(1) All agreements that include a change, extension, or an ascertainment of these Terms of Use, as well as special assurances, warranties and understandings must be put into writing. If they are declared by representatives or assistants of Spelsberg, they will only be binding after Spelsberg has given its written authorisation.
(2) If individual provisions of this contract are not effective or are not practicable, or become ineffective, or impracticable, they shall not affect the effectiveness of the remaining Terms of Use. Instead of the ineffective provisions, the parties shall agree on an effective regulation that is substantially and economically seen as close as possible to the ineffective provision. In case there are gaps in laws, the parties shall agree on a regulation that they would have entered into if they had considered the respective item with the conclusion of the Terms of Use.
(3) The customer can only offset its contractual counterclaims with other claims from respective legal transaction or make claims for a right of retention if this claim of Spelsberg is indisputable or legally ascertained.
(4) Referring all legal relationships from this contractual relation, the parties agree the application of the laws of the Federal Republic of Germany.
(5) The place of jurisdiction is the place where the head office of Spelsberg is.
(6) Exclusive place of jurisdiction for all disputes between the parties from or on the occasion of the business relation is Schalksmühle.
- Issued in March 2020 -